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U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals


Office of the Clerk

5107 leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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Popal, Rahman DHS/ICE Office of Chief Counsel - SFR
Mira Law Group P.O. Box 26449
3411 E.12th Street, Suite 122 San Francisco, CA 94126-6449
Oakland, CA 94601

Name: PEREZ GALVEZ, MANUEL AAR... A 205-907-274

Date of this notice: 1/26/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

borutL CaAAJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Manuel Aaron Perez Galvez, A205 907 274 (BIA Jan. 26, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executh,e Office for Immigration Review

Falls Church, Virginia 22041

File: A205 907 274 - San Francisco, CA Date:


JAN 2 6 2017

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In re: MANUEL AARON PEREZ GALVEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Rahman Popal, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, appeals from an Immigration Judge's
decision dated October 1, 2015, denying the respondent's motion to reopen his removal
proceedings. The appeal will be sustained.

We have considered the totality of the circumstances presented in this case, and conclude
that an exceptional situation has been demonstrated and sua sponte reopening is warranted. See
8 C.F.R. I003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997). We specifically note
that the respondent mistakenly appeared for his hearing one day late, and he exercised due
diligence in filing to reopen these proceedings. In addition, the Department of Homeland
Secwity did not oppose the respondent's request to reopen proceedings or this appeal. Finally,
the respondent has presented evidence that he is in the process of filing a U visa application with
the United States Citizenship and Immigration Services and has received a "B-certification" (Br.
at 8).

Given the foregoing, we will sustain the appeal, proceedings will be reopened, and the record
will be remanded.

ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

FO

Cite as: Manuel Aaron Perez Galvez, A205 907 274 (BIA Jan. 26, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
100 MONTGOMERY ST., SUITE 800
SAN FRANCISCO, CALIFORNIA 94104

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Mira Law Group
Popa!, Rahman
3411 E.12th Street, Suite 122
Oakland, CALIFORNIA 94601

IN THE MATTER OF FILE A 205-907-274 DATE: Oct 1, 2015


PEREZ GALVEZ, MANUEL AARON

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION


IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT


OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
100 MONTGOMERY ST., SUITE 800
SAN FRANCISCO, CA 94104

XX OTHER: IJ DECISION: MOTION TO REOPEN REMOVAL PROCEEDINGS

cou
ON COURT FF
CC: GROSS, ELIZABETH A.
100 MONTGOMERY STREET, SUITE 200
SAN FRANCISCO, CALIFORNIA 94104
(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA

Matter of Date:
t .JZOl5

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Manual Aaron PEREZ GALVEZ, File Number: A20S-907-274

The Respondent In Removal Proceedings

Charge: Section 237(a)(l){B) of the Immigration and Nationality Act, as


amended, as an alien who entered the United States as a nonimmigrant
and stayed longer than permitted

Motion: Motion to Reopen

On Behalf of the Res.pondent: On Behalf of OHS:


Rahman Popal Elizabeth Gross
Mira Law Group Office of the Chief Counsel
3411 E. 12th Street, Suite 122 100 Montgomery Street, Suite 200
Oakland, California 94601 San Francisco, California 94104

DECISION OF THE IMMIGRATION JUDGE


I. BACKGROUND

On April 19, 2013, the Oeparbnent of Homeland Security ("OHS") initiated removal
proceedings against the respondent, Manual Aaron PEREZ GALVEZ, by filing a Notice to Appear
(''NTA") with the San Francisco, California, Immigration Court. Exh. 1. The NTA alleges that the
respondent is a native and citizen of El Salvador, who was admitted to the United States at
Washington D.C. on or about January 23, 2007, as a B2 nonimmigrant with authorization to remain
in the United States until July 22, 2007, but remained longer than permitted. Id. Based on these
allegations, the NTA charges the respondent with removability under section 237(a)(l)(B) of the
Immigration and Nationality Act ("INA" or "Act"), as amended, as an alien who entered the United
States as a nonimmigrant and stayed longer than permitted. Id.

The respondent appeared for his initial master calendar hearings on August 21, 2014, and
January 22, 2015, but failed to appear for a third master calendar hearing on July 30, 2015. DHS
introduced a Form 1-213, Record ofDeportable Alien, to substantiate the charge ofremovability.
Exh. 2. Based on the evidence in the record, the respondent was found removable as charged and
was ordered removed in absentia on July 30, 2015. IJ Order (July 30, 2015).

On September 3, 2015, the respondent moved to reopen proceedings under the Court's sua
sponte authority. See 8 C.F.R. 1003.23(b)(l); Resp't's Motion to Reopen (Sept. 3, 2015)
(

, . .,-
[hereinafter Resp't's Mot. to Reopen]. He requests that the Court reopen proceedings and rescind
his removal order because he is preparing to file an application for a U nonimmigrant visa with
United States Citizenship and Immigration Services ("USCIS"). Id. at 4. DHS did not file an
opposition to Respondent's motion. See 8 C.F.R. 1003.23(b)(iv) ("A motion shall be deemed
unopposed unless timely response is made.").

II. DISCUSSION

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Generally, a respondent must file a motion to reopen within 90 days of a final administrative
order of removal. 8 C.F.R. 1003.23(b)(l). Additionally, the Court may reopen a case sua sponte
at any time. Id. A motion to reopen shall state the new facts to be proven if the motion is granted
and shall be supported by affidavits and other evidentiarymaterial. Id. 1003.23(b)(3). A motion
to reopen requested in order "must be accompanied by the appropriate application for relief and all
supporting documents." Id. The evidence that a respondent seeks to submit must be material and
"could not have been discovered or presented at the former hearing." Id Here, the respondent only
requests that the Court exercise its sua sponte authority.

While the Court may reopen any case sua sponte at any time, the power is not intended to be
used to circumvent the regulations ''where enforcing them might result in hardship." Matter ofJ-J-,
21 I&N Dec. 976,984 (BIA 1997). Rather, this authority should only be used in truly exceptional
circumstances as an extraordinary remedy. Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA
1999) ("[W]e invoke our sua sponte authority sparingly, treating it not as a general remedy for any
hardships created by enforcement of the time and number limits in the motions regulations, but as
an extraordinary remedy reserved for truly exceptional situations."); Matter ofL-V-K-, 22 I&N Dec.
976, 980 (BIA 1999). Further, an applicant must also "demonstrate a substantial likelihood that the
result in his case would be changed if reopening is granted." Matter ofBeckford, 22 I&N Dec.
1216, 1219 (BIA 2000).

Here, the respondent seeks sua sponte reopening because he may be eligible for a U
nonimmigrant visa and because he failed to appear for his hearing because he thought it was on July
31, 2015 and not on July 30, 2015. Resp't's Mot. to Reopen at 4. He learned of his mistake after
appearing on July 31 and was told that his hearing was the day before. Id. at 1. He also asserts that
his injuries from the beating he suffered when he was the victim of a robbery caused him to mistake
the date of his hearing by one day and that he is currently in the process of preparing his application
for a U nonimmigrant visa based on being a victim of that robbery. Id. at 4-5.

The respondent submitted evidence reflecting that he went to the hospital for multiple
contusions and abrasions on April 17, 2013. Resp't's Mot. to Reopen at 11. However, this
evidence does not indicate how these injuries would cause the respondent to mistake the date of his
hearing over two years later on July 30, 2015. Although the respondent alleges in his motion that
he suffers from "short-term memory loss and is easily confused," these health issues are not evinced
in the medical records included with his motion nor are these health issues mentioned in his sworn
statement in support ofhis motion. Resp't's Mot. to Reopen at 4, 8, 10-11.

Further, missing a hearing, even by a few hours, is generally insufficient to constitute


exceptional circumstances that would merit reopening. Valencia-Fragoso v. INS, 321 F.3d 1204,
1205-06 (9th Cir. 2003) (finding that an applicant, who was four and a half hours late for her
hearing, failed to establish exceptional circumstances that would merit reopening her case); see
AlOS-907-274 2
also Salazar v. Keisler, 257 Fed.Appx 45 (9th Cir. 2007) (finding that "an alien's misunderstanding
or mistake regarding the schedule for a removal hearing is, standing alone, not considered
exceptional circumstances sufficient to reopen proceedings"); Selvaratnam v. Gonzales, 244
Fed.Appx. 109 (9th Cir. 2007) (finding that a misunderstanding about the date ofthe hearing did not
amount to "exceptional circumstances"). 1 However, in Singh, the Ninth Circuit found exceptional
circumstances that merited reopening of a case after an alien had reasonably misunderstood the date
of his hearing, had faithfully appeared for previous hearings, and was the beneficiaryof an
approved visa petition. Singh v. INS, 295 F.3d 1037,1039-40 (9th Cir. 2002). The Ninth Circuit

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found clispositive in Singh that the alien was immediately eligible for relief, and thus the result of
his hearing would have been different had he appeared. Valencia-Fragoso, 321 F.3d at 1205.

However, in this case, Respondent is not immediately eligible for relief, only alleging that
he may be eligible for reliefin the form of a U nonimmigrant visa and is "preparing to file his
application with USCIS." The Court notes that determining an applicant's eligibility for a U
nonimmigrant visa is solely a matter for USCIS. See 8 C.F.R. 214.14. Since Respondent has yet
to even file an application for a U nonimmigrant visa, he has no relief currently available and his
possibility for reliefis speculative. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.
2008) (finding a denial ofa motion to continue was not an abuse ofdiscretion when the alien's
eligibility for relief was speculative and not immediately available). Accordingly, the Court cannot
find that there is a substantial likelihood that the reliefthe respondent is preparing to seek would be
granted ifthe Court reopened proceedings. Beckford, 22 I&N Dec. at 1219 (finding that, "at a
minimum, [the respondent] need[s] to demonstrate a substantial likelihood that the result in his case
would be changed" if his case is reopened sua sponte). He has therefore failed to establish that his
circumstances are exceptional. Valencia-Fragoso, 321 F.3d at 1206.

Although the Court is sympathetic to the respondent's situation,his situation is not ''truly
exceptional" where it would be appropriate to utilize the Court's sua sponte authority. G-D-, 22
I&N Dec. at 1134 (finding that reopening proceedings sua sponte is an "extraordinaryremedy")
(citing J-J-, 21 I&N Dec. at 984). Accordingly, the Court declines to exercise its sua sponte
authority to reopen the respondent's case.

In light ofthe foregoing, the following order shall enter:

ORDER

IT IS HEREBY ORDERED that the respondent's motion to reopen be DENIED.


'

1
Although these last two cases are not precedential, the Court finds them persuasive in determining what constitutes a
''truly exceptional circumstance" upon which it is appropriate to utilize the Court's sua sponte authority. See G-D-, 22
I&N Dec. at 1133-34.
AlOS-907-274 3